Doe v. Wasden et al

Filing 84

AMENDED MEMORANDUM DECISION AND ORDER (REDACTED). Signed by Judge B Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN DOE and RANDALL
MENGES,

Case No. 1:20-cv-00452-BLW
AMENDED MEMORANDUM
DECISION AND ORDER
(REDACTED)

Plaintiff,
v.
LAWRENCE WASDEN, Attorney
General of the State of Idaho;
KEDRICK WILLS, Colonel of the
Idaho State Police, LEILA
MCNEILL, Bureau Chief of the Idaho
State Police Bureau of Criminal
Investigation; and THE INDIVIDUAL
MEMBERS OF THE IDAHO CODE
COMMISSION, all of the above in
their official capacities,
Defendants.

INTRODUCTION
John Doe1 and Randall Menges challenge the requirement that they register
for the Idaho Sex Offender Registry because of their Doe’s conviction under

1

The Court granted Plaintiff John Doe’s Motion to Proceed Under Pseudonym. (Dkt. 41).
Accordingly, the Court issues this unsealed opinion for public view and redacts information that
would reveal Doe’s true identity.

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’s Crime Against Nature statute and Menges’s conviction under Idaho’s
Crime Against Nature statute respectively. Defendants have filed a motion to
dismiss for failure to state a claim and lack of jurisdiction.2 Plaintiffs have filed a
motion for a preliminary injunction. The Court held a hearing on April 7, 2021. For
the reasons that follow the Court will grant Defendants’ motion to dismiss in part,
deny it in part, grant Plaintiffs’ motion for preliminary injunction, and enjoin the
state from requiring Doe or Menges from registering as sex offenders in Idaho.
BACKGROUND
A.
In

John Doe
John Doe pled guilty to a charge filed under

’s

Crime Against Nature statute.3 The Information charging John Doe stated that Doe
“unlawfully, willfully, and feloniously did commit a crime against nature on [his
wife], to wit: oral sex.”
Doe subsequently moved to Idaho and was arrested on charges unrelated to
this current action. When Doe was released from custody in 2020, Idaho State

The State filed a motion to dismiss Doe’s first complaint. Following the filing of the
first motion to dismiss, Menges was joined as a Plaintiff and Plaintiffs filed an amended
complaint. Therefore, Defendants first motion to dismiss (Dkt. 30) is moot.
2

3

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Police, Bureau of Criminal Identification notified him that he was required to
register as a sex offender pursuant to Idaho’s Sex Offender Registration
Notification and Community Right to Know Act (SORA), I.C. § 18-8301 et seq.,
due to his prior conviction in

.

It is not entirely clear how the ISP determined Doe’s
conviction was substantially equivalent to Idaho’s crime against nature. Pursuant to
the Idaho Administrative Procedure Act (IDAPA) Rule 11.10.03.012 and Idaho
Code § 18-8304(1)(b), the Bureau of Criminal Identification, Idaho Sex Offender
Registry (SOR) has the authority to conduct a criminal history search to determine
whether the statute that Doe was previously convicted under was “substantially
equivalent” to an offense in Idaho that would require him to register. Defendants
suggest that Bureau Chief of SOR, Leila McNeil, obtained judgments, convictions,
charges, and police reports related to Doe’s

conviction. However,

none of the underlying documents were referenced in the notice sent to Doe.
Instead, the notice simply states that “[t]he criminal elements contained in
’s crime against nature statute] are substantially equivalent to those found

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in Idaho Code § 18-6605,4 Crime Against Nature.” Based on ISP’s determination,
Doe was ordered to register as a sex offender in Idaho for life pursuant to Idaho
Code § 18-8304(1)(b).
B.

Randall Menges

In 1993, Randall Menges was living at a 12-bed youth foster ranch in Gem
County, Idaho. At the age of 18, Menges engaged in consensual sexual intercourse
with two other male residents of the ranch. Both were 16 years old at the time.
Gem County then charged Menges with three violations of Idaho’s crime against
nature statute. Menges pled guilty to one count of committing a crime against
nature, I.C. § 18-6605. As a result of his conviction, Menges is required to register
as a sex offender for life pursuant to Idaho Code § 18-8304(1)(a).
C.

Statutory Structure
1. History of I.C. § 18-6605

Idaho’s Crime Against Nature statute, a relic of the common law, has been
in existence since Idaho was a territory. The revised codes of 1887 held that

The elements of the
statute are (1) commission of a “crime against
nature” with (2) mankind or beast. Notably, the statute does not require non-consent nor that the
victim be under the legal age of consent. At the time of Doe’s conviction, the
Supreme Court had interpreted the crime against nature statute broadly. See
4

.

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“[e]very person who is guilty of the infamous crime against nature, committed with
mankind or with any animal, is punishable by imprisonment in the Territorial
prison not less than 5 years.”5 Ex parte Miller, 23 Idaho 403, 405 (1913) (quoting
sec. 6810, Rev. Stats. of 1887). In 1913, the Idaho Supreme Court made its first
foray into limiting the effect of the law when it found that the punishment for
having oral or anal sex could not include the death penalty but could include life
imprisonment. Id. at 406.
Codified in the early 1970s, the current version of the Crime Against Nature
statute, I.C. § 18-6605, is identical to its territorial predecessor aside from updating
the word “Territorial” to “state” prison. However, the Idaho Supreme Court has
limited the application of the statute to ensure that its enforcement complies with
the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558
(2003).
In May 2020, the Idaho Supreme Court noted that section 18-6605 does not
contain an express requirement that the prohibited sexual contact be nonconsensual. State v. Gomez-Alas, 167 Idaho 857, 864 (2020). Nonetheless, in order

5

The Idaho Supreme Court has interpreted the Crime Against Nature statute to bar oral
or anal sex. State v. Altwatter, 29 Idaho 107 (1916); State v. Gomez-Alas, 167 Idaho 857, 862
(2020) (“All unnatural copulation includes acts ‘committed per os or per anum.’”) (quoting State
v. Johnson, 120 Idaho 408, 412 (Ct. App. 1991)).

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to comply with Lawrence, the court proceeded to judicially impose a consent
requirement. Id., at 864-65 (“Thus, Idaho’s statute ‘prohibiting the infamous crime
against nature may not be constitutionally enforced to prohibit
private consensual [sexual] conduct.’”) (alteration in original) (emphasis in
original) (quoting State v. Holden, 126 Idaho 755, 761 (Ct. App. 1995)). Therefore,
the Idaho Supreme Court now reads § 18-6605 to apply only to non-consensual
sexual conduct.
2. Idaho’s Sexual Offender Registration Notification and
Community Right-to-Know Act
Idaho passed its initial sex offender registration law, the Sex Offender
Registration Act, in 1993. I.C. § 18-8301 et seq. (1993). In 1998, the Legislature
repealed that act and replaced it with the Sexual Offenders Registration
Notification and Community Right-to-Know Act, which, in amended form,
continues to operate today. I.C. § 18-8301 et seq.
a. Determining “substantial equivalence” under § 188304(1)(b)
SORA applies to any persons convicted in Idaho of a laundry list of sexual
crimes, including Idaho’s Crime Against Nature statute. I.C. § 18-8304(1)(a). In
addition to the specifically enumerated Idaho crimes that require registration,
section 18-8304(1)(b) requires any person to register who moves to Idaho and has

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been convicted of an out-of-state sex crime that is “substantially equivalent” to an
offense listed in section 18-8304(1)(a). See Doe v. State, 158 Idaho 778, 782–83
(2015).
Responsibility for determining whether an out-of-state sex crime conviction
is “substantially equivalent” to an 18-8304(1)(a) crime falls on ISP’s Bureau of
Criminal Identification. IDAPA 11.10.03.012. In order to determine substantial
equivalence, the Bureau is permitted to use “the police report (of the incident
related to the sex offense), indictment or information or other lawful charging
document, judgment or order (of sex offense conviction), psychosexual evaluation
report, and order of probation.” Id. The Bureau must make a substantial
equivalency determination within sixty days of receiving the required documents.
Id. The determination is considered a declaratory ruling under state law and
judicial review of the decision is available in state court. Id. If a positive finding is
made, the Bureau sends a Notice of Duty to Register to the relevant person, and
that person has two working days to report to the County Sheriff for the county in
which they reside.
b. Registration Requirements
Registration under SORA carries with it significant requirements and
restrictions. The information that a registrant must provide to the State includes

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current and former names, including nicknames, pseudonyms, and ethnic or tribal
names; email addresses, “instant messaging” addresses, and any other online
identity or screen name used for electronic communications; complete physical
description including scars and tattoos; date of birth; social security number;
residential address and a physical description of the residence; name and address of
any school the registrant attends; description and license plate number of any
vehicle used for personal or employment use; telephone number; addresses of
employment and volunteer positions; information related to any professional
licenses; passport information; a photocopy of any driver’s license or identification
card; fingerprints; and a photograph. I.C. § 18-8305(1)(a–p). The Idaho State
Police disseminate information collected from each registrant to the United States
Attorney General, schools and public housing agencies in the area where the
registrant resides, volunteer organizations that work with kids or vulnerable adults
in the area where the registrant resides, and publishes it on a publicly accessible
website. I.C. § 18-8324(1).
Restrictions on a registrant’s individual freedoms include prohibitions on
gaining employment at a day care center, group day care facility, or family day
care home, I.C. § 18- 8327(1); absent certain limited exceptions, from living within
five hundred of a school used by children, I.C. § 18-8329(1)(d); and from picking

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up or dropping off their own children at school without prior notification and
annual written approval of the school, I.C. § 18-8329(2).
Further, the registrant must pay an $80 annual fee. I.C. § 18-8307(2). And,
failure to register is punishable by up to 10 years of imprisonment and a fine of up
to $5,000. I.C. § 18-8311(1).
LEGAL STANDARD
A.

Motion to Dismiss
1. 12(b)(1)

The Defendants move to dismiss this action under Federal Rule of Civil
Procedure 12(b)(1) arguing that this court lacks subject matter jurisdiction to hear
this case. A Rule 12(b)(1) jurisdictional attack may be facial or factual. Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the
challenger asserts that the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction. By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction. The defendants’ attack here is factual, as it
relies on extrinsic evidence and does not assert lack of subject-matter jurisdiction
based solely on the pleadings.
In resolving a factual attack on jurisdiction, the district court may review
evidence beyond the complaint without converting the motion to dismiss into a

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motion for summary judgment. Savage v. Glendale Union High Sch., 343 F.3d
1036, 1039 n.2 (9th Cir. 2003) (citing White, 227 F.3d at 1242). The court need not
presume the truthfulness of the plaintiff's allegations. White, 227 F.3d at 1242; Safe
Air for Everyone, 373 F.3d at 1039.
2. 12(b)(6)
Defendants also move for dismissal under Fed. R. Civ. Pro. 12(b)(6) for
failure to state a claim upon which relief can be granted. In resolving a Rule
12(b)(6) motion, the Court must accept as true all well-pleaded factual allegations
in the complaint. However, the Court is not “required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
B.

Preliminary Injunction

Doe and Menges move for a preliminary injunction to enjoin the State from
requiring them to register as sex offenders. To obtain preliminary injunctive relief,
Doe and Menges must establish that: (1) they are likely to succeed on the merits;
(2) they are likely to suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities tips in their favor; and (4) an injunction is in the public
interest. Winter v. NRDC, 555 U.S. 7, 24 (2008). When the government is a party,
the court considers the balance of equities and the public interest together. Drakes

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Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
ANALYSIS
Plaintiffs challenge Idaho’s requirement that they register as sex offenders
for their pre-Lawrence crime against nature convictions. Plaintiffs allege that,
because a finding of lack of consent was not required at the time they were
convicted, Idaho violates their rights to substantive due process by requiring them
to register based solely on the judgment of conviction. Doe additionally argues
that, to the extent the State looks to facts beyond the judgment of conviction, it
violates his right to procedural due process by not providing a pre-deprivation
hearing. Menges also argues that Idaho violates his right to equal protection
because he is required to register as a sex offender for his Crime Against Nature
conviction, but others are not required to register for other convictions based on
equivalent acts. Finally, Plaintiffs challenge Idaho Code § 18-6605 as violative of
their of their rights to due process and as unconstitutionally vague. The Court will
address each of these arguments, after first considering (1) the Defendants’
argument that the claims should be dismissed for mootness, a lack of standing, the
bar of Heck v. Humphrey, and (2) the Plaintiff’s request that the Court declare
Idaho’s crime against nature statute, I.C. § 18-6605, facially unconstitutional.
A.

Menges’ Claims Are Not Moot

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The day before the hearing on the motions, the Defendants filed a motion to
supplement pleadings alleging that Menges had moved to Montana. Dkt. 71. Idaho
then undertook procedures to remove Menges from the Idaho Sex Offender
Registry. Essentially, Defendants attempt to use their motion to supplement to put
forward the argument that Menges lacks standing to challenge the Idaho sex
offender registration statute and that his claims are moot.
It is undisputed that at the time Menges’ amended complaint was filed he
was residing in Idaho and was registered on the Idaho sex offender registry.
Menges’ relocation to Montana does not call into question his standing to sue.
“The existence of standing turns on the facts as they existed at the time the plaintiff
filed the complaint.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832,
838 (9th Cir. 2007).
The state has also not demonstrated that Menges’ claims are moot. Menges
is required to register as a sex offender within two days of returning to his home
state of Idaho either to reside, for work, or for education. See I.C. §§ 18-8303(15)
(defining “residence”), 18-8304(1)(e) (requiring registration when “working in
Idaho” or a student here), 18-8303(6) (defining employment to include part-time
and volunteer work), 18-8307(4) (requiring registration within two days of
residence or employment). Defendants have not met their burden of establishing

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that there is no effective relief for the Court to provide for Menges. At this stage of
the litigation it is quite likely that Menges will return to Idaho and be required to
register as a sex offender. Therefore, his claim is not moot. See Gonzalez v. Metro.
Transp. Auth., 73 F. App'x 986, 988 (9th Cir. 2003).
B.

Standing

Article III limits the jurisdiction of federal courts to “cases” and
“controversies.” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir.1993). “Federal courts
are presumed to lack jurisdiction, unless the contrary appears affirmatively from
the record.” Id. (citation and internal quotation marks omitted). Standing is an
essential, core component of the case or controversy requirement. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
As the parties invoking federal jurisdiction, Plaintiffs bear the burden of
establishing their standing to sue. Id. at 561. To do so, they must demonstrate three
elements which constitute the “irreducible constitutional minimum” of Article III
standing. Id. at 560. First, plaintiffs must have suffered an “injury-in-fact” to a
legally protected interest that is both “concrete and particularized” and “actual or
imminent,” as opposed to “‘conjectural’ or ‘hypothetical.’” Second, there must be
a causal connection between their injury and the conduct complained of. Third, it
must be “likely”—not merely “speculative”—that their injury will be “redressed

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by a favorable decision.” Id. at 560–61 (citations omitted). Because Plaintiffs seek
declaratory and injunctive relief only, there is a further requirement that they show
a very significant possibility of future harm; it is insufficient for them to
demonstrate only a past injury. Bras v. California Pub. Util. Comm'n, 59 F.3d 869,
873 (9th Cir. 1995).
Here both Menges and Doe have standing to bring this lawsuit. Because of
their previous convictions, both Menges and Doe are required to register as sex
offenders for life or face criminal prosecution. This is a very real injury. Further, if
the Court grants their requested relief they will no longer be required to register.
C.

Heck v. Humphrey

Defendants argue that Plaintiffs’ claims are barred under Heck v. Humphrey,
512 U.S. 477 (1994). “Heck bars a § 1983 action that would imply the invalidity of
a prior conviction if the plaintiff could have sought invalidation of the underlying
conviction via direct appeal or state post-conviction relief, but did not do so.”
Martin v. City of Boise, 920 F.3d 584, 613 (9th Cir. 2019).
In Martin, the plaintiffs brought a § 1983 action challenging the City of
Boise’s ordinances prohibiting the homeless from camping or sleeping on public
property. Id. at 603-04. The Ninth Circuit held that Heck bars retrospective relief –
including expunging plaintiffs’ records, recovering court costs and fines, and

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damages. The Ninth Circuit then held that Heck did not bar the plaintiffs from
obtaining prospective injunctive relief. Specifically, the Ninth Circuit found that
Heck had no application to the plaintiffs’ request for injunctive relief prohibiting
the City from prosecuting them for sleeping in public spaces when homeless
shelters were full. Id. at 615.
To be sure, the contours of the Heck doctrine are not entirely clear. For
instance, does finding a criminal statute facially unconstitutional call into question
a previous conviction under that statute? It would seem so. But, the Ninth Circuit
found that the City of Boise’s enforcement of its ordinances violated the Eighth
Amendment when there were no beds in homeless shelters available. Many of the
plaintiffs’ previous convictions were for sleeping in public places when no beds
were available in shelters. Yet, the Ninth Circuit found that declaring the
ordinances unconstitutional, in the same situation, in the future, did not call into
question those previous convictions. The Ninth Circuit made clear however, that
it’s holding was a narrow one—only that the City could not prosecute individuals
in the future for sleeping in public when there were no shelter beds available. In
Martin, the Ninth Circuit did not pass on the facial validity of the challenged
ordinances.
The reality of the Martin holding seems to be that the Court may hear a

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plaintiff’s § 1983 challenge to the enforcement of a statute even where that
plaintiff has been convicted under the statute, so long as the plaintiff only requests
prospective relief.
Ultimately, Heck is of little matter in this case. Menges was convicted under
I.C. § 18-6605 and Heck may bar his direct challenge to I.C. § 18-6605. But, Doe
was convicted under the

Crime Against Nature statute. And,

finding that I.C. § 18-6605 is unconstitutional would in no way call into question
his conviction under the

statute.

Further, both Menges and Doe challenge the Idaho sex offender registration
statute. Both Doe and Menges admit that their convictions were constitutional at
the time they were entered. A finding that the Idaho sex offender registration
statute is unconstitutional for a pre-Lawrence conviction does not call into question
the original conviction. Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997);
Menges v. Knudsen, 2021 WL 1894154, at *9 (D. Mont. May 11, 2021). As the
Ninth Circuit held in Martin, Heck is inapplicable when the plaintiff seeks
prospective relief from an unconstitutional statute, which is true here.
D.

I.C. 18-6605
1. Due Process

Plaintiffs primarily focus their lawsuit on the Idaho sex offender registration

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requirement for their previous crime against nature convictions. But, they also ask
the Court to declare the Idaho crime against nature statute, I.C. § 18-6605, facially
unconstitutional. This is essentially a standalone facial challenge to Idaho’s crime
against nature statute. Doe also argues that I.C. 18-6605 is unconstitutional as
applied to him through the State’s equivalency determination.
There are multiple problems with Plaintiffs’ standalone challenge to I.C. §
18-6605.
First, Plaintiffs complain that Idaho’s reliance on their pre-Lawrence crime
against nature convictions cause their injury. But, at the same time, they argue that
they are in no way seeking to call into question their previous convictions.
There is a distinct tension in Menges’ argument that on the one hand he is
not challenging his underlying conviction under I.C. § 18-6605, but the statute is
unconstitutional as applied to him. If, indeed the statute—standing alone—is
unconstitutional as applied to him he may be able to have his conviction vacated
through a post-conviction proceeding.
It is helpful to think about Menges’ claim as though Idaho did not require
him to register as a sex offender for his previous conviction. He is not seeking to
prevent future prosecutions under the statute, unlike the plaintiffs in Martin.
Instead he is seeking to avoid the collateral consequences of his conviction by

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having the Court find the statute unconstitutional. If a conviction under I.C. § 186605 was not a registrable offense, then Menges would not be able to challenge the
constitutionality of the statute through a § 1983 action unless he was planning to
violate the statute again—like the plaintiffs in Martin. Instead, he would have to
challenge the statute, and his conviction, through a post-conviction proceeding.
Second, it is important to understand what the protected liberty interest at
issue is in this case. Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Here
both Menges and Doe assert that they have a protected liberty interest in being free
from registering as sex offenders. Neither Doe nor Menges argue that they have
any intention of violating I.C. § 18-6605 in the future. Nor do they suggest they
have a protected liberty interest in having nonconsensual oral or anal sex.
Instead, relying on Lawrence, Plaintiffs argue that the State’s reliance on
their previous convictions—which they acknowledge were constitutional at the
time they were entered—to require them to register as sex offenders now violates
due process. Plaintiffs argue that the Supreme Court’s decision in Lawrence v.
Texas, 539 U.S. 558 (2003), invalidated all statutes that solely prohibit oral or anal
sex.
As the Ninth Circuit has observed “the bounds of Lawrence’s holding are
unclear.” Erotic Serv. Provider Legal Educ. & Rsch. Project v. Gascon, 880 F.3d

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450, 456 (9th Cir.), amended, 881 F.3d 792 (9th Cir. 2018) (quoting In re Golinski,
587 F.3d 901, 904 (9th Cir. 2009)). The Ninth Circuit has not read Lawrence as
striking down all laws that prohibit sodomy. Instead, in Anderson v. Morrow the
Ninth Circuit stated that:
The Lawrence Court held that the Due Process Clause of the
Fourteenth Amendment protects the right of two individuals to engage
in fully and mutually consensual private sexual conduct. The holding
does not affect a state's legitimate interest and indeed, duty, to
interpose when consent is in doubt.
371 F.3d 1027, 1032-33 (9th Cir. 2004).
Likewise in Cook v. Reinke, 484 Fed. Appx. 110 (9th Cir. 2012), the Ninth
Circuit upheld the District Court’s denial of the petitioner’s habeas corpus petition
for his conviction under § 18-6605. There the Ninth Circuit found that the
conviction was not contrary to Lawrence because the Idaho Court of Appeals
concluded that § 18-6605 could not be used to criminalize sex occurring in private
between consenting adults. See also United States v. Laursen, 847 F.3d 1026, 1034
(9th Cir. 2017) (noting that constitutional protection has not been extended to
sexual relationships between adults and children).
When determining whether a state statute is constitutional the court should
defer to the state supreme court’s interpretation of the statute. See Arizonans for
Off. Eng. v. Arizona, 520 U.S. 43, 75 (1997); Nunez by Nunez v. City of San Diego,

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114 F.3d 935, 939-40 (9th Cir. 1997). This is because “a State’s highest court is the
final judicial arbiter of the meaning of state statutes.” Gurley v. Rhoden, 421 U.S.
200, 208 (1975).
In 1995, the Idaho Court of Appeals held that I.C. § 18-6605 could not be
applied to the private consensual acts of married couples. State v. Holden, 126
Idaho 755, 762 (Ct. App. 1995). Then in State v. Gomez-Alas, 167 Idaho 857, 866
(2020) the Idaho Supreme Court held that I.C. § 18-6605 “can only be enforced in
circumstances…where the infamous crime against nature is committed in a
nonconsensual manner.”
The Idaho Supreme Court’s interpretation of I.C. § 18-6605 brings it well
within the holding of Lawrence.
Thus, to the extent that Doe argues that the State cannot compare his
previous conviction to I.C. § 18-6605, as it exists after Gomez-Alas, his argument
fails. Likewise, Idaho does not violate Menges’ substantive due process rights by
relying on his previous conviction under § 18-6605 so long as the elements of that
conviction were the same as the elements of conviction under the statute after
Gomez-Alas.
Accordingly, the Court finds that Plaintiffs have failed to state a claim that
I.C. § 18-6605, standing alone, is unconstitutional either facially or as applied to

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them. The Court will grant Defendants’ motion to dismiss to the extent Plaintiffs
seek to have § 18-6605 declared unconstitutional.
2. Vagueness
Plaintiffs next argue that I.C. § 18-6605 is unconstitutionally vague. They
then argue that by extension I.C. § 18-8304 is also unconstitutionally vague to the
extent it relies on a conviction under I.C. § 18-6605.
The void for vagueness doctrine is rooted in the Due Process Clause of the
Fifth Amendment. United States v. Williams, 553 U.S. 285, 304 (2008). “The Fifth
Amendment provides that ‘[n]o person shall ... be deprived of life, liberty, or
property, without due process of law,’ ” and “the Government violates this
guarantee by taking away someone’s life, liberty, or property under a criminal law
[1] so vague that it fails to give ordinary people fair notice of the conduct it
punishes, or [2] so standardless that it invites arbitrary enforcement.” Johnson v.
United States, 576 U.S. 591, 595 (2015) (citing Kolender v. Lawson, 461 U.S. 352,
357-58 (1983)). A criminal statute violates the “fair notice” requirement if it “fails
to give a person of ordinary intelligence fair notice that his contemplated conduct
is forbidden by the statute.” Colautti v. Franklin, 439 U.S. 379, 390 (1979)
(internal quotation marks omitted). A statute violates the “arbitrary enforcement”
requirement if it is “so indefinite that it encourages arbitrary and erratic arrests and

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convictions.” Id. (internal quotation marks omitted). In other words, “ordinary
notions of fair play and the settled rules of law,” Johnson, 576 U.S. at 595, are
violated if police officers, prosecutors, and judges are essentially “defining crimes
and fixing penalties” by filling statutory gaps “so large that doing so becomes
essentially legislative,” United States v. Evans, 333 U.S. 483, 486-87 (1948).
In scrutinizing a state statute for intolerable vagueness, courts must “take the
statute as though it read precisely as the highest court of the State has interpreted
it.” Wainwright v. Stone, 414 U.S. 21, 22-23 (1973) (quoting Minnesota ex rel.
Pearson v. Probate Court, 309 U.S. 270, 273 (1940)). “When a state statute has
been construed to forbid identifiable conduct so that ‘interpretation by (the state
court) puts these words in the statute as definitely as if it had been so amended by
the legislature,’ claims of impermissible vagueness must be judged in that light.”
Id. at 23 (quoting Winters v. New York, 333 U.S. 507, 514 (1948)).
A statute may be challenged for vagueness either “on its face” or “as
applied.” Schwartzmiller v. Gardner, 752 F.2d 1341, 1346 (9th Cir. 1984).6 A

The Court in Schwartzmiller indicated that the state court’s interpretation is particularly
applicable in an as applied challenge, but the Supreme Court has repeatedly held that a state
supreme court’s interpretation of a statute must be considered in either a facial or as applied
challenge. See Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 n.5
(1982) (facial challenge); Wainwright v. Stone, 414 U.S. 21, 22 (1973) (as applied challenge).
6

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facial vagueness challenge is mutually exclusive from an as applied challenge. Id.
A party has standing to challenge a statute facially if “no standard of conduct is
specified at all.” Id. at 1347 (quoting Parker v. Levy, 417 U.S. 733, 755 (1974)).
This means that the statute must be “impermissibly vague in all of its
applications.” Id. (quoting Village of Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 497 (1982)).
Here, I.C. § 18-6605 provides:
Every person who is guilty of the infamous crime against nature,
committed with mankind or with any animal, is punishable by
imprisonment in the state prison not less than five years.
The Idaho Supreme Court has construed I.C. § 18-6605 as prohibiting “all
unnatural carnal copulations committed per os or per anum.”7 State v. Gomez-Alas,
167 Idaho 857, 863 (2020). Further, the crime against nature must be “committed
in a nonconsensual manner.” Id. at 866.
It is not entirely clear whether Plaintiffs challenge the statute facially or as
applied. In their complaint, Plaintiffs request that the Court declare I.C. § 18-6605
unconstitutionally vague and enjoin its enforcement in any situation involving
human beings—ignoring the portion of the statute related to bestiality. Amd.

7

Per os or per anum means either oral or anal copulations, respectively. See SODOMY,
Black's Law Dictionary (11th ed. 2019)

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Compl. at 17, Dkt. 39. Doe also alleges that I.C. § 18-6605 is unconstitutionally
vague as applied in determining whether he must register for his crime against
nature conviction in

. Id. at 18. Plaintiffs then go on to allege that

I.C. § 18-8304 is unconstitutionally vague because it relies on I.C. § 18-6605 to
determine if someone must register.
Irrespective of whether Plaintiffs challenge I.C. § 18-6605 facially or as
applied, their challenge fails.8 The statute does not “impinge on or ‘chill’”
constitutionally protected conduct. Schwartzmiller v. Gardner, 752 F.2d 1341,
1348 (9th Cir. 1984). Thus, any facial challenge fails. Further, through
interpretation by the Idaho Supreme Court, the statute provides fair notice of what
is prohibited—nonconsensual anal or oral sex. Finally, it is not so standardless as
to invite arbitrary enforcement.

8

The vagueness doctrine is perhaps one of the most pernicious forms of legal fiction. On
the one hand, a criminal statute must give “a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden.” Colautti v. Franklin, 439 U.S. 379, 390 (1979). But, on the
other hand, courts, and would be criminals, must look not just to the face of the statute but also to
law dictionaries, treatises, and state court opinions to determine what conduct may be prohibited
and whether the statute is unconstitutionally vague. This is a tall order for the most sophisticated
attorney, but provides an almost impenetrable task for someone uneducated in the law. See John
Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev.
189, 206 (1985). This particular statute, more than any other, illustrates the problems with the
vagueness doctrine as it exists today. In 2021, a person of common intelligence is more likely to
interpret the “infamous crime against nature” as littering, poaching, or perhaps unpermitted
discharge of pollutants, instead of sodomy. If the Court were working from a blank slate, it
would easily find the statute void for vagueness. But, the Court is not free to ignore precedent.

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Because I.C. § 18-6605 is not unconstitutionally vague, I.C. § 18-8304’s
reliance on it does not make the sex offender registration statute unconstitutionally
vague. Indeed, if an individual has been convicted of nonconsensual oral or anal
sex then they are on notice that they must register as a sex offender in Idaho.
Therefore, the Court will grant Defendants’ motion to dismiss as to Plaintiffs’
vagueness claim.
E.

Idaho’s Sex Offender Registration

Having resolved the challenges to § 18-6605, the Court turns to Plaintiffs’
allegations regarding the Idaho sex offender registration statute and the
requirement that they register as sex offenders for their pre-Lawrence crime against
nature convictions. Although Plaintiffs did not state a plausible claim for relief as
to their standalone challenges to § 18-6605, this does not foreclose their challenges
to the sex offender registration statute and Idaho’s administration of the sex
offender registry.
Under the Idaho Sexual Offender Registration Notification and Community
Right-to-Know Act, I.C. § 18-8301 et seq., anyone convicted of the infamous
crime against nature, I.C. § 18-6605, after 1993 must register as a sex offender for
life. I.C. §§ 18-8304(1)(a) (listing registrable offenses), 18-8307(7) (registration
for life). Pursuant to I.C. § 18-8304(1)(b), anyone convicted of a crime outside the

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state of Idaho, which the Idaho State Police, Bureau of Criminal Identification
determines is “substantially equivalent” to a crime listed in 18-8304(1)(a) must
register as a sex offender for life. Pursuant to IDAPA 11.10.03.012.07, in
determining whether an offense is substantially equivalent to a crime listed in 188304, the Bureau may use the police report, any charging documents, judgment or
order of conviction, psychosexual evaluation report, and order of probation.
On

, Doe was charged by information in

with committing “a crime against nature on [his wife], to wit oral sex” in violation
of

. Dkt. 51-1 at 6. Doe eventually pled

guilty.
On

, the Bureau of Crime Identification sent Doe a notice

of his duty to register as a sex offender. Dkt. 51-1 at 9. The notice indicates that the
Bureau had reviewed Doe’s

conviction and found that it was

substantially equivalent to Idaho’s crime against nature. The only findings of fact
in the notice are that, on

, Doe was convicted of one count of

violating

, Crime Against Nature. Id. at

10. The conclusion of law states that “[t]he criminal elements contained in
, Crime Against Nature are substantially
equivalent to those found in Idaho Code § 18-6605, Crime Against Nature.” Id.

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Defendants argue that the Bureau considered the police report and original
indictment in Doe’s case to determine whether his crime was substantially
equivalent to IC § 18-6605. Defendants have submitted unauthenticated copies of
the police report and other documents from Doe’s

case. The notice

provided to Doe does not reference these materials, it only indicates that the
elements of the

, under which he was convicted, are

substantially equivalent as those of I.C. § 18-6605. As will be explained below, if
Defendants solely relied on the elements of the

crime against

nature statute, as it existed when Doe pled guilty, they violated his rights to
substantive due process. If they did rely on the underlying documents, but did not
provide him a pre-deprivation hearing, they violated his right to procedural due
process.
Menges pled guilty to violating I.C. § 18-6605 in 1994, when he was 18.
Neither side has introduced Menges’ judgment of conviction, but it appears that
Menges is required to register solely on the basis of his 1994 conviction. As will be
explained below, this violated Menges rights to substantive due process and equal
protection.
1. Substantive Due Process
The Due Process clause of the Fourteenth Amendment prohibits a State from

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depriving “any persons of life, liberty, or property, without due process of law.”
U.S. Const. amend XIV, § 1. It is well understood that this clause has both
substantive and procedural components. County of Sacramento v. Lewis, 523 U.S.
833, 845-46 (1998). The substantive component to the Due Process Clause is
designed to provide protection against governmental interference with certain
fundamental rights and liberty interests. Washington v. Glucksberg, 521 U.S. 702,
720 (1997). While fundamental liberty interests require that any state infringement
of these rights be “narrowly tailored to serve a compelling state interest,” state
actions that implicate anything less than a fundamental right require only that the
government demonstrate “a reasonable relation to a legitimate state interest to
justify the action.” Glucksberg, 521 U.S. at 722.
There are two liberty interests at issue in this case. The first is the right to
engage in private, consensual sexual conduct. Anderson, 371 F.3d at 1032
(discussing Lawrence v. Texas, 539 U.S. 558 (2003)). The second is the liberty
interest in being free from being labelled as a sex offender and the myriad of stateimposed restrictions and requirements that comes with being required to register as
a sex offender. See Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997); Fletcher v.
Idaho Dep't of Correction, 2020 WL 7082690, at *6 (D. Idaho Dec. 3, 2020).
Both Doe and Menges are required to register on the basis of their pre-

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Lawrence crime against nature convictions. At the time of their convictions it was
constitutional for a state to prosecute individuals for engaging in consensual oral or
anal sex. Bowers v. Hardwick, 478 U.S. 186 (1986); State v. Gomez-Alas, 167
Idaho 857, 866 (2020); State v. Whiteley, 616 S.E.2d 576, 579 (2005).
It was not until 2003, when the Supreme Court decided Lawrence, that it
became unconstitutional for a state to prosecute an individual for engaging in
consensual oral or anal sex. “The Lawrence Court held that the Due Process Clause
of the Fourteenth Amendment protects the right of two individuals to engage in
fully and mutually consensual private sexual conduct.” Anderson v. Morrow, 371
F.3d 1027, 1032-33 (9th Cir. 2004).
The Information that Doe pled guilty to only alleges that he “commit[ed] a
crime against nature on [his wife], to wit: oral sex.” Dkt. 51-1 at 6. There is no
element of non-consent within the information nor the judgment of conviction.
Likewise, Menges pled guilty to one count of crime against nature. See Dkt. 49-3
at 2. The State has put forward no evidence that Menges pled guilty to a
nonconsensual sex act. Instead, the evidence tends to show the exact opposite—
that the sexual conduct Menges pled guilty to was entirely consensual.
The State can have no legitimate interest in requiring Doe and Menges to
register as sex offenders for engaging in private, consensual sexual acts. To the

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extent the state bases its determination that Doe and Menges must register on the
fact of a pre-Lawrence crime against nature conviction, lacking any element of
non-consent in the judgment of conviction, it violates both their right to engage in
private consensual sexual activity and to be free from the burdens of sex offender
registration.
2. Procedural Due Process
The right to procedural due process arises only when a constitutionally
protected interest is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
Therefore, courts analyze procedural due process claims in two parts. First, the
Court must determine whether the plaintiff possessed a constitutionally protected
interest. See Brown v. Or. Dep't of Corrs., 751 F.3d 983, 987 (9th Cir. 2014). If
not, the inquiry ends. If, however, the plaintiff shows that he had a liberty or
property interest of which the government deprived him, the Court must then
consider, on a case-by-case basis, whether the plaintiff received the process that he
was due. See Wolff v. McDonnell, 418 U.S. 539, 560 (1974). That is, a due process
claim lies only where (1) the plaintiff was deprived of a protected interest, and (2)
the state’s procedures were constitutionally inadequate.
In Connecticut Department of Public Safety v. Doe (“CDPS”), 538 U.S. 1
(2003), the Supreme Court rejected the respondent’s procedural due process

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challenge to Connecticut’s sex offender registry law. The Court held, because “the
law’s requirements turn on an offender’s conviction alone—a fact that a convicted
offender has already had a procedurally safeguarded opportunity to contest”
through trial, any hearing to establish a fact that was not material under the statute
is a “bootless exercise.” Id. at 7-8. The Court then went on to explain that
“[p]laintiffs who assert a right to hearing under the Due Process Clause must show
that the facts they seek to establish in that hearing are relevant under the statutory
scheme.” Id. at 8.
In Doe v. Tandeske, 361 F.3d 594 (9th Cir. 2004), the Ninth Circuit rejected
a procedural due process challenge to Alaska’s sex offender registration statute.
Relying on CDPS, the Ninth Circuit stated “… Alaska’s sex offender statute bases
the registration and notification requirements on the sole fact of plaintiffs’
convictions. Accordingly, … we hold that [the] registration law does not deprive
[plaintiffs] of procedural due process.”
Unlike the plaintiffs in CDPS or Tandeske, here the State argues that the
Bureau of Criminal Identification did not rely solely on Doe’s conviction as the

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basis for requiring him to register.9 Instead, the State argues that it has looked
through his conviction to the original indictment and police reports to determine
whether there was an element of non-consent underlying Doe’s
conviction. Dkt. 45 at 5. If, as the State argues, it relied on documents beyond the
“fact of conviction” to determine whether Doe must register, then procedural due
process requires it provide Doe a pre-deprivation hearing. See Neal v. Shimoda,
131 F.3d 818, 831 (9th Cir. 1997).
As previously discussed, Doe has a protected liberty interest in being free
from registering as a sex offender.10 Not only is Doe publicly labelled as a sex

The State argues that, because the police report and other records related to Doe’s
conviction were filed in a separate State Court proceeding, this Court can take Judicial
Notice of them. Dkt. 45 at 5. This is incorrect. The Court “may not take judicial notice of
proceedings or records in another cause so as to supply, without formal introduction of evidence,
facts essential to support a contention or cause then before it.” M/V Am. Queen v. San Diego
Marine Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (citing 29 Am.Jur.2d Evidence § 58
(1967)). See also 21B Fed. Prac. & Proc. Evid. § 5106.4 (2d ed.). The State alleges that most of
its exhibits were contained in the Bureau’s file on Doe and used to make the substantial
equivalence determination. But, it has not authenticated any of its exhibits, nor has it explained
how particular documents are admissible. See Fed. R. Evid. 901, 902. Finally, many of the
documents contain inadmissible hearsay, which, even if the documents are authenticated, the
Court may not take Judicial notice of. United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003).
9

10

Menges also raises a procedural due process claim. There is, however, no allegation
that the state looked through his judgment of conviction to determine whether he must register.
Indeed, the Idaho sex offender registration statute does not provide any ability for the Bureau of
Criminal Identification to look through the judgment of conviction to determine whether
someone convicted in Idaho must register. The only trigger for registration is the fact of
conviction. At this stage in the litigation, Menges has demonstrated a likelihood of success on

(Continued)

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offender, but he is also required to annually pay a registration fee and update his
registration. He is limited in where he can live, what jobs he can hold, and places
he can frequent.
Where, as here, there is a protected liberty interest, the court then uses the
three-part balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), to
determine whether a pre-deprivation hearing is required and what specific
procedures must be employed at that hearing given the particularities of the
deprivation. Yagman v. Garcetti, 852 F.3d 859, 864 (9th Cir. 2017). The Mathews
test balances three factors: (1) the private interest affected; (2) the risk of erroneous
deprivation through the procedures used, and the value of additional safeguards;
and (3) the government’s interest, including the burdens of additional procedural
requirements. Mathews, 424 U.S. at 335.
First, Doe’s private interest in being free from having to register as a sex
offender for life is substantial. Not only is he publicly labelled as sex offender, but
he must bear the attendant burdens of registration for the rest of his life.
The only recourse Doe has for an erroneous “substantial equivalence”

the merits of his substantive due process claim. If, later in the litigation, it appears that the State
somehow looks through Menges judgment of conviction he can litigate his procedural due
process claim. Ultimately, the same analysis that applies to Doe would likely also apply to
Menges.

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determination is to appeal the Bureau’s order to an Idaho district court within 28
days of the order. State v. Glodowski, 166 Idaho 771, 776 (2020). If Doe fails to
appeal within 28 days, he is barred from directly challenging the determination. Id.
Instead he must seek to be released from registration as provided by I.C. §18-8310.
Both the nature and weight of the deprivation, including the potential length
of time of the deprivation, weigh heavily in favor of a pre-deprivation hearing. See
Mackey v. Montrym, 443 U.S. 1, 12 (1979) (length of automatic drivers license
suspension and availability of immediate post-suspension hearing weighed against
need for pre-deprivation hearing).
Second, the risk of erroneous deprivation and value of additional safeguards
weigh in favor of a hearing.
In Mackey, the drivers license would only be suspended after the driver was
arrested for driving under the influence, probable cause existed for the arrest, and
the driver refused to take a breath-analysis test. 443 U.S. at 13-14. Further, the
driver’s refusal had to be witnessed by two law enforcement officers. Id. at 14.
There, the Court found it important that the officers would have firsthand
knowledge of the arrest, including the driver’s actions and statements, thus
reducing the risk of error.
Here, unlike Mackey, the State relies on police reports and other

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documentation generated over 20 years before requiring Doe to register. While
these documents may be reliable, they also may not. And, under the State’s current
scheme, there is no way to know. The information relied on by the State has not
been tested through cross examination and Doe cannot challenge its veracity prior
to the Bureau making its substantial equivalency determination. Further, any
documents in Doe’s case suggesting an element of non-consent are not supported
by the final judgment in the case. Finally, it also does not appear that the Bureau
notifies Doe that it is performing a substantial equivalence determination until the
determination has already been made and he is notified that he must register as a
sex offender within two days or face substantial criminal penalties. See Dkt. 51-1
at 9. Thus, he has no opportunity to challenge the Bureau’s determination until it is
too late.
Considering the risk of erroneous deprivation, there is significant value in
providing additional safeguards. Doe does not have the opportunity to provide any
input in the substantial equivalence determination until it is made. If Doe was
afforded a predeprivation hearing he would be able to challenge the assertions in
the underlying documents. But, as it currently stands he is subject to the Bureau’s
reliance on hearsay within historical documents with no opportunity to correct the
record.

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Third, then, is the State’s interest, including the burdens of additional
procedural requirements. The State’s interest in requiring sex offenders to register
to inform and protect the public is well established. See CDPS, 538 U.S. 1, 4
(2003).11 The parties did not meaningfully address the Matthew factors, and the
Court will not speculate as to the burden on the State other than to observe that
adding a pre-deprivation hearing would not significantly interfere with the State’s
ability to determine whether an offender must register.
In most cases the State will only need to look to the elements of the foreign
conviction and will not need to rely on case related documents. However, in the
limited cases, like Doe’s, where the state looks through the judgment of conviction
to the underlying reports and documents, it will be able to factor a pre-deprivation
hearing into its substantial equivalence determination and ensure that an offender is
still registered in a timely fashion. The Court does not see how a pre-deprivation
hearing would significantly increase the burden on the State, nor would it need to
seriously delay the registration of an offender who committed a substantially
equivalent offense.
At this point in the litigation, and without more definite briefing on the issue,

11

But see, Ira Mark Ellman & Tara Ellman, "Frightening and High": The Supreme
Court's Crucial Mistake About Sex Crime Statistics, 30 Const. Comment. 495, 502 (2015).

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the Court does not need to determine how formal a pre-deprivation hearing may
need to be. It is sufficient, for now, that the State must afford Doe some
opportunity to be heard before subjecting him to a lifetime of sex offender
registration for a pre-Lawrence crime against nature conviction.
3. Equal Protection
In 1994, when Menges was 18, he pled guilty to and was convicted of a
crime against nature for having consensual sex with a 16-year-old male. Dkt. 49-3
at 2. Since that conviction, the State has required Menges to register as a sex
offender. Menges claims that Idaho violates his right to equal protection by
requiring him to register for this crime when it would not require an 18-year-old
male who had consensual sex with a 16-year-old female to register.
The equal protection clause “commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the laws,’ which is essentially
a direction that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (quoting U.S.
Const., amend. XIV, § 1). The equal protection guarantee is in tension with the
reality that laws almost inevitably draw lines between groups of people,
advantaging some and disadvantaging others. Romer v. Evans, 517 U.S. 620, 631
(1996).

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In analyzing Equal Protection claims, the Court’s “first step ... is to identify
the state’s classification of groups.” Gallinger v. Becerra, 898 F.3d 1012, 1016
(9th Cir. 2018) (quoting Country Classic Dairies, Inc. v. Milk Control Bureau, 847
F.2d 593, 596 (9th Cir. 1988)). Once a classified group has been identified, the
Court “identifies a control group composed of individuals who are similarly
situated to those in the classified group in respects that are relevant to the state’s
challenged policy.” Id. (citations omitted). If the two groups are similarly situated,
the court determines the appropriate level of scrutiny and then applies it. Id.
Menges suggests that his classification group is that of 18-year-old males
who have had otherwise consensual sex with a 16-year-old male. He argues the
control group is 18-year-old males who have had consensual sex with a 16-yearold female. The State argues that Menges is differently situated than an 18-year-old
male who had consensual sex with a 16-year-old female because Menges was
convicted for a crime against nature and the ostensibly straight 18-year-old male
would have been convicted of statutory rape. While this argument initially has
some appeal, upon closer inspection it fails.
In 1994, the State of Idaho criminalized statutory rape between any male and
a female under 18 years old. See 1994 Idaho Sess. Laws Ch. 83 (H.B. 607)
(codified at 18-6101). Between 1993 and 1998 any conviction for rape, including

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statutory rape, required an individual to register as a sex offender. See 1993 Idaho
Sess. Laws Ch. 155 (S.B. 1002) (codified at I.C. § 18-8303). When the Idaho sex
offender registration statute was passed in its current version the registration
requirement for individuals convicted of statutory rape was removed.12 See 1998
Idaho Sess. Laws Ch. 411 (S.B. 1297) (codified at I.C. § 18-8304). Now, the Idaho
sex offender statute requires individuals convicted of rape, under I.C. § 18-6101, to
register. But, the statute specifically excludes individuals convicted under I.C. §
18-6101(1) where the defendant is eighteen years of age. I.C. § 18-8304(1)(a).
When Menges was convicted in 1994 he could not have been prosecuted for
statutory rape.13 When the State removed the registration requirement for
individuals convicted of statutory rape it functionally drew a distinction between
an 18-year-old male who had consensual sex with a 16-year-old female and an 18year-old male convicted of having otherwise consensual sex with a 16-year-old
male.

12

In 2010, the Idaho rape law was amended such that it was no longer a crime for an 18year-old male to have otherwise consensual sex with a female who is 16 or older. 2010 Idaho
Sess. Laws Ch. 352 (S.B. 1385) (codified at I.C. 18-6101).
In 2016 the State revised its rape law to make it gender neutral by replacing “female,”
“she,” and “her,” with “victim.” 2016 Idaho Sess. Laws Ch. 296 (H.B. 580). Until 2016, the
statutory rape law only applied to males who had sex with females. See State v. Joslin, 145 Idaho
75, 83 (2007). Until 2016, the State could not prosecute an 18-year-old male who had sex with a
16-year-old male under the statutory rape law.
13

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Thus, the Court finds that the appropriate classification group is, like
Menges, 18-year-old males who were convicted in 1994, under I.C. §18-6605, who
engaged in consensual oral or anal sex with a 16-year-old male. The control group
is composed of 18-year-old males who were convicted in 1994, under Idaho Code
§ 18-6101, for engaging in consensual vaginal sex with a 16-year-old female.
These groups are similarly situated in all respects. Both are comprised of males
who, at the age of 18, engaged in consensual sex with a 16-year-old. The only
difference in the groups is the sex of their partner and whether they engaged in oral
or anal sex or vaginal sex. Menges v. Knudsen, 2021 WL 1894154, at *19 (D.
Mont. May 11, 2021).
The Court next turns to the appropriate level of scrutiny. Menges argues that
the law cannot survive rational basis review. A law that neither targets a suspect
class nor burdens a fundamental right is subject to rational basis scrutiny. Heller v.
Doe, 509 U.S. 312, 319-21 (1993). Like the court in Menges v. Knudsen, this Court
has concerns that a law which draws distinctions based on both gender and sexual
orientation needs to survive more than rational basis review. 14 2021 WL 1894154,

14

This concern is heightened by the discriminatory and arbitrary enforcement of the
Idaho crime against nature statute. The Crime Against Nature statute in Idaho has been used to

(Continued)

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at *20 (discussing Obergefell v. Hodges, 576 U.S. 644, 680–81 (2015) and Bostock
v. Clayton Cty Ga., 140 S. Ct. 1731, 1754 (2020)). But, the Court does not need to
resolve the issue because the distinction drawn by Idaho’s sex offender registration
law cannot survive even rational basis review.
Under rational basis review, the Court presumes the law is valid unless the
challenger can show the difference in treatment bears no rational relation to a
conceivable government interest. Id. “A classification does not fail rational-basis
review because it ‘is not made with mathematical nicety or because in practice it
results in some inequality.’” Id. at 321 (quoting Dandridge v. Williams, 397 U.S.
471, 485 (1970)). But, even under this most deferential standard, the “State may
not rely on a classification whose relationship to the asserted goal is so attenuated
as to render the decision arbitrary or irrational.” Cleburne, 473 U.S. at 446. For this

target, condemn, and punish consensual homosexual activity as demonstrated by three Idaho
Supreme Court cases from the 1950s. In State v. Wilson, 78 Idaho 385, 388 (1956), the Court
referred to the defendant’s consensual homosexual activity as a “crime committed against
society” and affirmed his sentence because he was “an habitual, persistent homosexual
offender.” In State v. Larsen, 81 Idaho 90, 98 (1959), the Court upheld the conviction after the
defendant challenged the prosecutor’s argument that “urged the jurors to enforce the law and to
halt an outbreak of homosexual practices in the city.” And in State v. Moore, 78 Idaho 359, 363
(1956), that Court affirmed the denial of probation to one of the defendants because “the State
made a showing of various forms of homosexual activity on the part of the accused, extending
over a period of twelve or thirteen years.”

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reason, courts “insist on knowing the relation between the classification adopted
and the object to be attained.” Romer, 517 U.S. at 632; see also Heller, 509 U.S. at
321 (explaining the classification must “find some footing in the realities of the
subject addressed by the legislation”).
The State has offered no justification for the distinction beyond arguing that
Menges’ conviction was for committing a crime against nature, which is a different
conviction than statutory rape. While this is true, it bears repeating, that at the time
of Menges conviction, he could not have been prosecuted for statutory rape.
Following Lawrence, the State can have no rational basis for requiring a
male who engages in consensual sex with another male to register as a sex
offender, where the State does not require a similarly situated male who has
consensual sex with a female to register as a sex offender. Likewise, the state
cannot have a rational basis for requiring on 18-year-old who has consensual sex
with a 16-year-old to register, but not requiring another 18-year-old who has
consensual sex with a 16-year-old not to register solely on the basis on the sex of
the 16-year-old. Menges, 2021 WL 1894154, at *21. Because the State has not put
forward any other justification, the Court will not speculate what other interest it
might have in requiring Menges to register.
The Court finds that Menges has stated a likelihood of success on his equal

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protection claim. Simply put, there is no rational basis for forcing Menges to
register as a sex offender on the basis of his 1994 conviction for engaging in oral
or anal sex with a 16-year-old male when he was 18, but not forcing another male
to register as a sex offender who was convicted in 1994 for engaging in vaginal sex
with a 16-year old female when he was 18. See Doe v. Jindal, 851 F. Supp. 2d 995,
1009 (E.D. La. 2012); State v. Limon, 280 Kan. 275, 306, 122 P.3d 22, 40 (2005).
F.

Preliminary Injunction

As discussed above Doe and Menges are likely to prevail on their claims that
Idaho is violating their constitutional rights. Doe and Menges are both likely to
succeed on their claim that Idaho violates their right to substantive due process.
Doe is likely to succeed on his claim that Idaho violates his right to procedural due
process. And, Menges is likely to prevail on his claim that Idaho violates his right
to equal protection of the law.
Doe and Menges have also demonstrated irreparable harm. Idaho requires
both Plaintiffs to register as sex offenders on the basis of their pre-Lawrence crime
against nature convictions in violation of their constitutional rights. “It is well
established that the deprivation of constitutional rights ‘unquestionably constitutes
irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). This is especially true when

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the constitutional violations complained of are actively ongoing through the
enforcement of an unconstitutional law. See Great N. Res., Inc. v. Coba, 2020 WL
6820793, 2–3 (D. Or. 2020). Further, being required to register subjects both
Plaintiffs to the label of “sex offender” and the multiple harms of restricting where
they may live, work, and travel. They are also required to annually update their
registration and pay the registration fee or face further prosecution. The burdens of
registration harm both Doe and Menges daily.
Finally, the Court finds that the balance of the equities and public interest
tips in favor of an injunction. Doe and Menges are harmed daily by being required
to register as sex offenders and the violation of their constitutional rights. While
the State has an interest in protecting the public from sex offenders, it can have no
interest in protecting the public from individuals who engaged in consensual sexual
conduct that post-Lawrence could not be criminalized.15 Further, “it is always in
the public interest to prevent the violation of a party’s constitutional rights.”
Melendres, 695 F.3d at 1002 (citations omitted).

The State makes much of the documents underlying Doe’s conviction allegedly
showing that Doe’s conduct was non-consensual. But, those documents have not been
authenticated and the Court may not rely on them for the truth of any matter asserted therein. The
only documents properly before the Court related to Doe are his judgment of conviction and the
information he pled guilty to. Neither of those documents contain any element of non-consent.
15

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G.

Conclusion

The Court finds that Doe and Menges have failed to state a claim upon
which relief can be granted as to their standalone challenges to I.C. § 18-6605.
While historically used to discriminate against homosexuals, Idaho’s crime against
nature law has now been interpreted by the Idaho Supreme Court to bring it within
the holding of Lawrence. Therefore, I.C. § 18-6605 neither violates Plaintiffs’
substantive due process nor is it unconstitutionally vague. Because Plaintiffs’
claims regarding I.C. § 18-6605, standing alone, are legally foreclosed they cannot
be saved by amendment. Accordingly, the Court will dismiss with prejudice
Plaintiffs’ standalone claims that I.C. § 18-6605 is unconstitutionally vague and
violates their due process.
Idaho’s sex offender registration statute, however, is a different matter. As
discussed above, the Court finds that Plaintiffs have demonstrated a likelihood of
success on the merits based on Idaho’s reliance on Plaintiffs’ pre-Lawrence crime
against nature convictions as a basis for requiring them to register as sex offenders.
Plaintiffs have demonstrated irreparable harm both by way of the ongoing
constitutional violations they are suffering and the burdens of sex offender
registration. Finally, the balance of the equities and public interest tips in
Plaintiffs’ favor. Accordingly, the Court will grant Plaintiffs’ motion for a

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preliminary injunction and enjoin the State from forcing them to register as sex
offenders.

ORDER
IT IS ORDERED that:
1.

Defendants’ First Motion to Dismiss (Dkt. 30) is MOOT.

2.

Defendants’ Second Motion to Dismiss (Dkt. 42) is GRANTED IN

PART and DENIED IN PART as described above. Plaintiffs’ claims regarding I.C.
§ 18-6605, unrelated to I.C. § 18-8301, et seq. are DISMISSED WITH
PREJUDICE.
3.

Defendants’ Motion to Supplement (Dkt. 72) is GRANTED to the

extent the Court has reviewed the supplemental materials.
4.

Plaintiffs’ Motion for Preliminary Injunction (Dkt. 49) is GRANTED.

The State of Idaho is ENJOINED from requiring John Doe and Randal Menges to
register as sex offenders under I.C. § 18-8301 et seq.
5.

Bond is WAIVED.

6.

The Parties shall meet and confer and file an amended litigation plan

within 30 days of this order.

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DATED: September 8, 2021

_________________________
B. Lynn Winmill
U.S. District Court Judge

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